The Fight Over "Fleeting Expletives": How A Grant of Supreme Court Review May Lead to Expanded FCC Power and Reduced First Amendment Rights for Broadcasters

Recently, observers have voiced their fears that the Supreme Court will uphold a new Federal Communications Commission (FCC) policy, despite the fact that the policy threatens First Amendment rights. For instance, a March 23 editorial in the New York Times commented that "[w]e hope the Supreme Court does not authorize the F.C.C. to return to its censorial policies," but conveyed a strong fear that the Court would do just that.

The Times's fear is quite well-grounded. The best explanation for why the Court has decided to review the new FCC policy -- which addresses the subject of "fleeting expletives" -- is that the Court wants to give the policy its blessing, or at least to warn lower federal courts to grant more deference to the FCC in similar broadcast indecency cases.

The New FCC Policy, and the Comment that Triggered It

Under the FCC's new policy, the use of an expletive can be penalized even if it occurs a single time during a lengthy program; even if it occurs during a live broadcast, rather than a scripted, pre-recorded show; and even if it is used as an intensifier, rather than in a sexual or excretory sense.

Previously, any or all of these three factors might have put a given comment in the clear, from the FCC's perspective. However, the singer Bono's comment, during the live broadcast of the January 2003 Golden Globes ceremony, deeming his award "really, really fucking brilliant" -- which fulfilled all three factors - drew enough viewer complaints to lead the FCC to change its mind.

Bono's comment was "fleeting" in the sense that he said it once; he said it live; and because it was clear that he did not mean it in its most offensive and graphic sense, it was likely to make a less lasting impression on the viewer. Still, some viewers complained, and the FCC took notice.

After that, the FCC considered, and eventually adopted, a new policy that would penalize even "fleeting expletives" like Bono's. Predictably, when the FCC sought to apply the policy, it was soon challenged in court by some of the television networks to which the policy applied.

The Federal Appellate Decision Under Review, and Its Weaknesses

In June 2007, the U.S. Court of Appeals for the Second Circuit struck down the new policy. But even then, as I mentioned in a prior column, it was clear for several reasons that the decision might prove problematic:

First, the legal basis for the opinion of the 2-1 majority of the appellate panel was unexpected, and seemed strained: The case plainly raised major, and seemingly unavoidable, First Amendment issues. Yet the majority's opinion disposed of the case under the Administrative Procedures Act (APA).

Second, to reach this alternative APA holding, the majority had to very aggressively criticize the agency. Specifically, it had to hold that the FCC failed to "articulate a reasoned basis for this change in policy," as the APA requires. (Emphasis added.) Not "reasonable" - simply "reasoned."

This ruling was odd, to say the least. It wasn't the case that the record was blank; far from it. In fact, the FCC had cited a number of different bases for the change - so this ruling was tantamount to a claim that not one of these bases counted as being even minimally "reasoned." Put more bluntly, the majority was saying that the FCC was not only wrong, but irrational.

Third, the majority seemed to be desperately trying to prevent the very First Amendment issues it had so painstaking avoided from returning during some later stage of the case. Toward this end, the majority remarked that these issues had been "fully briefed," and that, after perusing the briefing, the majority had been left "skeptical" whether the FCC policy could "pass constitutional muster."

These gratuitous remarks, too, were odd. If the majority had ruled on the APA issue in order to avoid unnecessarily reaching a constitutional claim, why would it go on to provide readers with a preview of how the constitutional claim might likely be resolved in the future?

The unspoken message seemed to be that the majority hated the new policy, thought it inane (if not insane) and just wanted the case to go away, and the FCC to leave the television networks alone. In other words, commenting on the First Amendment claim without actually resolving it seemed to be a way of shutting the courthouse door to the FCC, while seeming to leave it open a crack for appearances' sake.

Fourth, and finally, the shakiness of the decision was underlined by the fact that, not only was the decision 2-1, but the dissenter was no knee-jerk conservative. Rather, the dissent was penned by Judge Pierre Leval, a fairly liberal jurist who is also an expert on First Amendment and intellectual property law. Leval's dissent alone may have raised a red flag for the Supreme Court, as it considered whether to grant review.

What the Supreme Court's Ruling in This Case May Look Like

Now, the Supreme Court will review the Second Circuit decision. What will it likely rule?

To begin, the relatively conservative Roberts Court must surely disagree with the Second Circuit majority's implausible interpretation of what the APA means by "reasoned." From a conservative perspective, this kind of strained interpretation smacks of judicial activism. The interpretation does not follow naturally from the wording of the APA. To the contrary, it restyles the carefully-chosen word "reasoned" as if it meant "reasonable" instead. To add insult to injury, it does so in order to allow expletives to be used on television, possibly on shows young people might watch.

Moreover, as Judge Leval's dissent shows, liberals often are not fans of twisting statutory words this way, either. Administrative law is generally supposed to be more about procedure (Was there a basis?) than substance (Was the basis persuasive?) Thus, even some of the Court's liberal Justices may not look kindly upon the Second Circuit's APA ruling.

Will the Court reach the First Amendment issues, too? There's certainly a simple argument for its not doing so: The Second Circuit never did. Arguably, if the Court reverses the APA ruling, then it should just send the case back down to the Second Circuit for a First Amendment ruling, rather than reaching the First Amendment questions here itself. It can always grant review again, if it doesn't like how the Second Circuit's First Amendment ruling turns out.

A Sneaky Strategy by the Solicitor General?

U.S. Solicitor General Paul Clement, however, may try to convince the Court to weigh in on the First Amendment issue, at least indirectly.

Clement reportedly will argue not only that the APA holding is in error, but also that the decision clashes with the 1978 Supreme Court precedent, FCC v. Pacifica, which approved the FCC's broad authority to regulate broadcast "indecency." He may thus try to elicit a reaffirmation of Pacifica from the Court. Such a reaffirmation would be very significant, for many Court observers have hoped that - to the contrary -- the Court would limit the reach of Pacifica in the dramatically different modern media context.

Today, technology allows parents to monitor and limit their children's television viewing if they so choose. Pacifica, in contrast, rested largely on the risk that children would hear the "indecent" words at issue. Indeed, it arose because a father complained his child had heard part of George Carlin's "Filthy Words" routine on the radio as they were driving in the afternoon.

Ideally, however, the Court will resist Clement's likely invitation to reaffirm Pacifica - declining to do so without more evidence, and lower court consideration, of how the First Amendment questions that FCC "indecency" regulation raises have changed in the modern media context. Simply affirming a thirty-year-old power without looking to whether its roots have shriveled away would be unworthy of the Court, and of the First Amendment. On the other hand, a pure APA ruling here might command the allegiance of the Court's conservatives and some of its liberals alike.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.